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Not So Recent Court of Appeals Case Grants Improvement Districts Statutory Right to Enter onto the Lands of Its Members

I-Stock waterImprovement districts are authorized by statute to construct and operate permanent utilities for irrigation, drainage, diking, water improvement and water control throughout the State of Oregon.  See Oregon Revised Statutes Chapters 545, 547, 551, 552 and 549.  In some instances, the permanent utilities constructed and operated by these districts have been in existence for over 100 years.  Often, these districts do not have title to the land on which the permanent utility is located nor do they hold recorded easements allowing access to maintain the infrastructure of the permanent utility.  The lack of recorded property rights can lead to uncertainty as to what rights a district has to enter onto its members’ lands to operate, repair and improve the existing infrastructure of its permanent utility.  Current landowners in a district may feel that their district does not have the right to enter onto their lands or that the district must obtain the right to enter their lands through voluntary acquisition or through condemnation.  This creates a potential nightmare for an improvement district and its members when a landowner seeks to prevent a district from entering onto his or her land for the purpose of operating, repairing or improving the permanent utility.  If this occurs, litigation may be the only option for the district or the landowner.  This was the case in Davis v. Nye Ditch Users Improvement District, 247 Or App 266, 268 P3d 778 (2011).

In Nye Ditch, the predecessors-in-interest to the plaintiffs joined with neighboring landowners in the 1920s to dig the Nye Ditch to irrigate their lands for agriculture.  Id. at 268.  The plaintiffs Davis and Ritters each purchased property in the district in 2003 and 2006, respectively.  Id.  The plaintiffs’ properties benefitted from the Nye Ditch and it was visible from their land.  Id.  The Nye Ditch Users Improvement District was formed under Chapter 554 in 2006 and the plaintiffs’ lands were within the district.  Id. at 268–69.  The plaintiffs used the Nye Ditch and paid assessments to the district.  Id. at 269.  The district contracted with an excavation contractor to make improvements to the Nye Ditch on the Ritters’ property.  The Ritters barred the excavation crew from entering their property and filed a lawsuit challenging the district’s authority to enter onto their lands.  Id.  The trial court granted summary judgment to the district finding that the district had the right to enter the land based on “(1) the easements belonging to landowners who draw water from the ditch, (2) ORS Chapter 554, and (3) defendant’s articles of incorporation.” Id. at 270.  The plaintiffs appealed.

The Court of Appeals began its analysis by noting that the landowners drawing water from Nye Ditch, as neighbors who receive a “mutual benefit” through a “common enterprise,” hold easements to cross their neighbors’ property to access the Nye Ditch.  Id. at 270–71 (citing Foster v. Foster, 107 Or 355, 368, 213 P 895 (1923); Luckey v. Deatsman, 217 Or 628, 634, 343 P2d 723 (1959)).  The easements are appurtenant to and run with the land.  Nye Ditch, 247 Or App at 271; Luckey, 217 Or at 636–37.  The Court of Appeals further held that landowners’ easement rights included the right to access their neighbors’ property for repairs.  Id. at 271 (citing Baumbach v. Poole, 266 Or 154, 157–58 n.1, 511 P2d 1219 (1973)).  “The general rule, that a party who has a right of enjoyment, has also a right to enter and make necessary repairs, is essential to the enjoyment of the thing granted.”  Id. at 271–72 (quoting Thompson v. Uglow, 4 Or 369, 372 (1873)).

The Court of Appeals went on to explain that the Nye Ditch Users Improvement District was entitled to exercise its members’ easement rights to enter onto its members’ lands to improve or repair the Nye Ditch.  Id. at 275.  The holding was based on the statute authorizing the formation of the district, ORS Chapter 554.  In particular, the Court noted that ORS 554.110 gave the district’s board “full authority and power to . . . (1) Build, construct and complete any works and improvements . . . (3) Operate and maintain such works as are necessary, convenient and beneficial for said purposes . . . .”  Id. at 274.  The Court of Appeals found that the statute granted the district the right to enter the land of its members to improve or repair irrigation ditches by implication.

[W]here a power is conferred by an act, everything necessary to carry out that power and make it effectual and complete will be implied.  Further that which is implied in a law is as much a part of it as that which is expressed.  These long-established principles of statutory construction are universally recognized [.]

Id. at 275 (quoting Pioneer Real Estate Co. v. City of Portland, 119 Or 1, 10, 247 P2d 319 (1926)).  “The legislature granted improvement districts the authority to act on behalf of individual landowners and to exercise, on their behalf, their common-law rights of improvement and repair and access necessary for that purpose.” Id. at 275.

The decision in Nye Ditch has a number of interesting aspects.  First, it acknowledges that the landowners who band together to build a permanent utility have property rights in each other’s lands.  Second, it takes that concept a step further to allow statutorily created and governed improvement districts to exercise its members’ property rights to operate, maintain and improve its existing infrastructure.  Third, by allowing the districts to exercise its members’ property rights, the Court of Appeals appears to have bypassed the question of whether the District’s operation, maintenance and improvement of a permanent utility on the lands of its members constitutes a constitutional taking.  By doing so, it removes the possibility that the members of the district may have to pay for the permanent utility twice – once when it was built and a second time to gain access to it.  Thus, the Court of Appeals created an elegant solution to what is otherwise an intractable problem for improvement districts around the Oregon.

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